Karus v Scottish Legal Complaints Commission and another [2014] CSIH 59

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Extra Division, Inner House, Court of Session
Lady Paton, Lord Drummond Young and Lord Wheatley
4 July 2014

The appellant was admitted as a solicitor qualified to practise in Scotland and his name was enrolled on the roll of solicitors kept by the second respondent, the Law Society of Scotland (LSS), in terms of s 7(1) of the Solicitors (Scotland) Act 1980. He had not held a practising certificate since 2002. In 2002 he made a request to the LSS that his name be removed from the roll of solicitors, but the LSS did not accede to the request and his name remained on the roll. The first respondent, the Scottish Legal Complaints Commission (SLCC), was responsible for the primary consideration of complaints made about the conduct of legal practitioners in Scotland. In doing so it exercised powers under s 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007. These proceedings related to a complaint made about the appellant's conduct. The SLCC would not generally accept a complaint if the complaint had been received more than one year after the professional conduct complained about had taken place unless the circumstances were exceptional (r 4(6) of the Rules of the Scottish Legal Complaints Commission 2009). Subject to that limitation, if the SLCC determined that a complaint about a solicitor's conduct was not frivolous, vexatious or totally without merit, and that the conduct amounted to a conduct complaint within the meaning of s 2(1)(a) of the 2007 Act, it had to remit the complaint to the LSS to be dealt with (ss 2(4), 5(1) and 6(a) of the 2007 Act). On 25 August 2009 the appellant pled guilty at Edinburgh Sheriff Court to a charge on indictment that between March and May 2003 and in January 2004 he had embezzled £413,052 while acting as the executor of a deceased client. He was sentenced to 3½ years' imprisonment. On 26 October 2009 solicitors acting for the appellant wrote to the LSS to advise it formally of the conviction and to renew the request that his name should be removed from the roll of solicitors. On 15 June 2011 the LSS made a complaint to the SLCC based on the appellant's conduct that had formed the subject of the criminal charges. They had not made any complaint prior to that date.

On 4 July 2011 the SLCC accepted the complaint for consideration, and it was intimated to the appellant. The SLCC determined that the complaint was an eligible conduct complaint for the purposes of the 2007 Act, and referred it to the LSS. Thereafter the appellant's solicitor corresponded with the SLCC and raised the question of whether the complaint had been lodged timeously and in accordance with r 4(6) of the 2009 Rules. The SLCC was asked to reconsider its decision, but the LSS refused to agree to such reconsideration. Consequently the appellant had to apply to the court for leave to appeal against the SLCC's decision of 4 July 2011. The appeal was ultimately not contested and, following the lodging of a joint minute, the SLCC's decision was recalled. The SLCC acknowledged that its acceptance of the complaint had been based on incorrect information provided by the LSS; the LSS stated that it had first heard about the appellant's conviction in May 2011, but it was clear that it had been aware of the conviction by October 2009. The complaint was remitted to the SLCC to consider afresh whether it had been made timeously, or whether in terms of r 4(6) of the 2009 Rules there were exceptional circumstances that would make it just and equitable for the SLCC to accept the complaint for investigation. By letters dated 7 December 2011 to the appellant's solicitor and the LSS, the SLCC indicated an initial view that the complaint might not have been lodged within the time limit in r 4(6) and that a decision not to accept the complaint for investigation might be made on the ground that it was outside the time limit. By letter dated 15 December 2011 the LSS submitted that there were exceptional reasons why the complaint ought to be admitted as an eligible conduct complaint and remitted back to them for investigation. On 7 February 2012 the appellant's solicitor sent detailed submissions to the SLCC as to why the complaint should not be accepted. It was claimed that the appellant had not been a solicitor at the time when he committed the embezzlement or on the dates when he was convicted and sentenced, and was not a solicitor at the time of the letter. Consequently, the LSS had no locus in the matter because the appellant had ceased to be a solicitor prior to the offence for which he was imprisoned. He had tendered his resignation from the roll of solicitors on 8 April 2002, but that resignation had not been accepted pending resolution of certain outstanding matters; those matters had, however, been concluded and consequently the resignation had become effective. Furthermore, the appellant had again tendered his resignation on 20 May 2005, when there were no matters pending, again on 6 June 2005 and again in November 2009. He had not renewed his practising certificate since 2002, and he had not attempted to act as a solicitor since February 2002. On that basis he was not a solicitor and was not subject to the LSS's jurisdiction. He had served his sentence and had repaid the sum he had embezzled. Moreover, the LSS had been aware of the criminal prosecution for a very substantial time and had failed to take disciplinary proceedings.

On 19 March 2012 the SLCC issued its determination, under s 4(1) of the 2007 Act, that, although the normal time-limit of one year had not been met, there were exceptional circumstances for accepting the complaint against the appellant for investigation. It was determined that the complaint should not be rejected under s 4(1) but should be remitted to the LSS for consideration. The appellant has appealed to the court against that determination. The court considered six grounds of appeal.

The appeal would be refused.

The appellant had failed to establish any material error of law by the SLCC, nor any other ground of challenge to its decision to accept the complaint against him for investigation.

(1) Whether the appellant remained a solicitor at the time of the conduct complained of or at the time of conviction: consequences for the first and second respondents' jurisdiction.

The appellant contended that as a result of his resignation from the roll of solicitors he was no longer a solicitor at the time of the relevant conduct, and his retention on the roll was unlawful. Consequently, neither respondent had any jurisdiction to embark on disciplinary proceedings against him; the SLCC's decision of 19 March 2012 to accept the LSS's complaint against him was therefore vitiated. That contention was erroneous. Both the roll of solicitors and the SLCC's powers, duties and responsibilities were statutory in origin. Thus responsibility for the terms of any entry on the roll and responsibility for correcting any inaccuracy in the roll must depend on the terms of the relevant statute, in this case ss 7-11 of the 1980 Act. Likewise, the SLCC's powers, duties and responsibilities were dependent on the provisions of Pt 1 of the 2007 Act (ss 1-46). As to the legislation governing the roll of solicitors, it was clear that responsibility for the roll, both generally and for individual entries, rested entirely with the LSS. Nothing in the legislation governing the roll gave the SLCC any powers or duties in respect of entries on the roll. It followed that the SLCC could not be compelled to make any correction to the roll. To the extent that a person might wish to challenge or correct or alter an entry he had to apply to the LSS. If the LSS refused or failed to take action, the appropriate remedy was judicial review of its decision. Section 2 of the 2007 Act, read with the following sections, set out the SLCC's sifting jurisdiction. The sifting jurisdiction applied to a 'practitioner', a term defined in s 46(1)(g). It was provided that the definition applied to a solicitor even after he had been removed from or struck off the roll. That was a clear indication that the definition of 'practitioner' in relation to solicitors was intended to be of wide application. Those provisions raised a question as to the tempus inspiciendum for the application of the definition of 'practitioner'. In the court's opinion that must be the time of the conduct about which the relevant complaint had been made. The intention of the definition was that the SLCC's jurisdiction to consider and sift a complaint against a solicitor would exist if at the time of the conduct that gave rise to the complaint the solicitor's name was on the roll; being on the roll at that time was used as the criterion for the SLCC's powers and jurisdiction. The appellant's name was on the roll of solicitors at the time when the embezzlement occurred, between March and May 2003 and in January 2004. For the reasons stated above, for the purposes of these proceedings that fact was decisive. In terms of s 46(1)(g) it was irrelevant whether the appellant's name was or should have been removed from the roll subsequently; he was on the roll at the time of the conduct complained about, and that was all that was required to establish the SLCC's sifting jurisdiction. If the appellant had wished to make a complaint about having his name on the roll he could have raised proceedings for judicial review against the LSS, but he did not do so. Consequently it was not strictly necessary to consider whether the appellant's name should have been on the roll of solicitors at that time. It appeared to the court, however, that it was properly on the roll.

(2) Whether the SLCC properly addressed issues of jurisdiction raised by the appellant.

The appellant's solicitor raised the question of whether or not the SLCC had jurisdiction to consider the complaint against him. The consideration the SLCC gave to those issues was quite immaterial, however. As a matter of logic, if jurisdiction existed, the SLCC had power to consider the complaint and could proceed to do so. Its reasons for reaching that conclusion were immaterial. If no jurisdiction existed, the SLSS had no power to consider a complaint, and once again its reasoning processes were immaterial. The court had held that jurisdiction existed, and that meant that the SLCC had power to consider the complaint.

(3) Whether the SLCC was correct to weigh the public interest against questions of jurisdiction.

A further contention for the appellant was that, by purporting to weigh the public interest against questions of jurisdiction, the SLCC acted irrationally. The answer to that contention was essentially the same as that discussed at (2) above. If as a matter of law jurisdiction existed, the SLCC could consider the complaint, and any error of law that it might have made in concluding that it had jurisdiction was immaterial. The court had concluded that the SLCC had power to consider the complaint against the appellant for reasons that had nothing to do with the public interest.

(4) Whether the SLCC gave adequate reasons for its decision.

The appellant's conduct about which the complaint was made took place in 2003 and 2004. He was convicted of embezzlement in August 2009. The LSS made no complaint to the SLCC until 15 June 2011, approximately 22 months after the date of conviction. Rule 4(6) of the 2009 Rules provided that a complaint made more than one year after the misconduct or conviction appeared to have occurred would not be accepted unless the SLCC considered that the circumstances were exceptional. The appellant's solicitor submitted that the test of exceptional circumstances was not satisfied, but the SLCC nevertheless held that that it was. Counsel for the appellant submitted that the SLCC had not given adequate reasons for that decision. In the court's opinion the SLCC's reasoning was plainly sufficient to satisfy the test in Wordie for assessing the adequacy of reasons given by a body such as the SLCC. It was clear from the statement of reasons that the primary reason was that the appellant was convicted of a serious crime of dishonesty which impinged directly on the relationship of trust between solicitor and client. That brought the profession into disrepute, and struck at the trust that the public ought to have in the legal profession. No informed reader could be in any significant doubt as to what the reason was. For the appellant it was submitted that the reasons the SLCC gave were very short by comparison with the lengthy letter his solicitor sent. However, that was not relevant. The SLCC stated that they had considered the arguments advanced in the letter, but in support of their decision to admit the complaint they focused on the serious nature of the appellant's conduct and the consequences that that had for the profession and the public's trust in it. That was all that required to be said. That was the decisive consideration, outweighing all the other factors that had been referred to, and it appeared clearly from the terms of the decision.

(5) Whether the SLCC erred in law in holding that exceptional circumstances justified receiving the complaint out of time.

The appellant's counsel drew attention to a number of factors that were relevant to the complaint. The delay in taking proceedings was substantial. The complaint was late by about 10 months. The LSS gave no reasons for the delay in making a complaint; indeed there was no indication that the LSS had done anything after becoming aware of the misconduct. The LSS had supplied the SLCC with inaccurate and misleading information about the time when it became aware of the complaint. The appellant had already been the subject of criminal proceedings, which resulted in a substantial period of imprisonment; thus the requirement that his conduct should be investigated and appropriate punishment meted out was irrelevant. Finally, any sanction imposed by the Scottish Solicitors' Discipline Tribunal would necessarily be limited because he had not held a practising certificate for more than 10 years. It was submitted that in its decision to accept the complaint the SLCC had failed to have proper regard to those factors. However, the court was of opinion that the SLCC's decision disclosed no error of law. In considering whether exceptional circumstances existed, the SLCC required to look at all material considerations. Those obviously included the factors referred to in the letter from the appellant's solicitor, which broadly corresponded to those advanced by counsel before the court. In its decision the SLCC stated that those had been taken into account, and there was no reason to disbelieve or disregard that statement. Nevertheless, the appellant had been convicted of the embezzlement of a large sum, £413,052. An offence of that nature clearly struck directly at the relationship of trust that must exist between a solicitor and his clients. Furthermore, it was a matter that affected the standing and public reputation of the legal profession generally. It was apparent from the SLCC's decision that that factor was regarded as decisive. It was open to the SLCC to balance a factor of that gravity against the various other arguments that were presented and to conclude that it outweighed them. That was sufficient to hold that the first respondent did not err in law.

(6) Whether the SLCC acted irrationally in failing to have regard to the absence of explanation by the LSS for the delay in lodging the complaint.

The absence of an explanation for delay was a factor that might be relevant in considering whether exceptional circumstances existed to override the time limit. Nevertheless, the exercise that the SLCC performed was twofold: first, in deciding whether exceptional circumstances existed, and secondly, if such circumstances existed, deciding whether they were sufficient to overcome the normal time-limit. The SLCC decided that the gravity of the embezzlement amounted to an exceptional circumstance. The second part of the exercise was then relevant: was that factor sufficient to overcome the normal time-limit? It was not suggested that the delay in this case had caused prejudice, and its total duration, 10 months beyond the normal limit, was not particularly long. In those circumstances it was impossible to see how the absence of any explanation could be a decisive factor. There was delay, but it was not especially serious. Consequently the SLCC was fully entitled to hold that the seriousness of the complaint and the importance of maintaining public trust in the profession were decisive.

Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 applied.

Murnin v Scottish Legal Complaints Commission [2012] CSIH 34, 2013 SC 97 considered.

Danskin v Law Society of Scotland 2002 Scot (D) 9/2, 2002 SCLR 1110 doubted.

Reproduced with kind permission of LexisLibrary.

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